In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 20-2911

COMMON CAUSE INDIANA and INDIANA STATE CONFERENCE OF 

THE NAACP,

Plaintiffs-Appellees,

v.

CONNIE LAWSON, Indiana Secretary of State, et al.,

Defendants-Appellants.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:20-cv-02007-SEB-TAB — Sarah Evans Barker, Judge.

____________________

SUBMITTED OCTOBER 13, 2020 — DECIDED OCTOBER 13, 2020

____________________

Before SYKES, Chief Judge, and EASTERBROOK and 

BRENNAN, Circuit Judges.

EASTERBROOK, Circuit Judge. Indiana counts an absentee 

ballot only if it is received by noon on Election Day. Ind. 

Code §§ 3-11.5-4-3, 3-11.5-4-10. A district court held this rule 

unconstitutional on the ground that the SARS-CoV-2 pandemic, which has led to more use of mail-in voting nationwide, creates a risk that ballots mailed close to Election Day 
2 No. 20-2911

will not be received on time. Common Cause Indiana v. Lawson, 2020 U.S. Dist. LEXIS 179161 (S.D. Ind. Sept. 29, 2020). 

The judge issued an injunction requiring the state to count 

all absentee ballots received by November 13, 2020, ten days 

after Election Day.

The district court’s premise is that the Constitution entitles all persons who cast absentee ballots to be free of any 

risk that the ballot will not count, even if they mail their ballots close to Election Day. Because the pandemic has made 

additional demands on the Postal Service and increased the 

probability that a ballot mailed near Election Day will arrive 

afterward, the judge deemed the state’s system unconstitutional. But a recent decision of this court holds that the 

premise is not correct—that as long as the state allows voting in person, there is no constitutional right to vote by mail.

Tully v. Okeson, No. 20-2605 (7th Cir. Oct. 6, 2020). Tully adds

that difficulties adributable to the virus do not require 

change in electoral rules—not, at least, as a constitutional 

mader. That some people are unwilling to vote in person 

does not make an otherwise-valid system unconstitutional. It 

is for states to decide what sort of adjustments would be 

prudent. The SARS-CoV-2 pandemic has caused great loss

but is not a good reason for the federal judiciary to assume 

tasks that belong to politically responsible officials.

As long as it is possible to vote in person, the rules for 

absentee ballots are constitutionally valid if they are supported by a rational basis and do not discriminate based on a 

forbidden characteristic such as race or sex. Tully, slip op. 9–

11, relying on McDonald v. Chicago Board of Election Commissioners, 394 U.S. 802 (1969). It is rational to require absentee 

votes to be received by Election Day, just as in-person voting 
No. 20-2911 3

ends on Election Day. Deadlines are essential to elections, as 

to other endeavors such as filing notices of appeal or tax returns. That some ballots are bound to arrive after any deadline does not justify judicial extensions of statutory time limits. See Griffin v. Roupas, 385 F.3d 1128, 1130 (7th Cir. 2004).

Counting the votes, and announcing the results, as soon as 

possible after the polls close serves a civic interest.

Other courts of appeals recently have held that laws 

seding an Election-Day deadline for receipt of all ballots are 

valid during a pandemic, as they are valid without one. See, 

e.g., New Georgia Project v. Raffensperger, 2020 U.S. App. LEXIS

31405 (11th Cir. Oct. 2, 2020); Arizona Democratic Party v. 

Hobbs, 2020 U.S. App. LEXIS 31677 (9th Cir. Oct. 6, 2020). We 

agree with that conclusion.

People who worry that mail will be delayed during the 

pandemic can protect themselves by using early in-person 

voting or posting their ballots early. As the Supreme Court 

observed in Republican National CommiNee v. Democratic National CommiNee, 140 S. Ct. 1205, 1207 (2020), those who act at 

the last minute assume risks even without a pandemic. Cf. 

United States v. Locke, 471 U.S. 84 (1985). A state satisfies all 

constitutional requirements by devising a set of rules under 

which everyone who takes reasonable steps to cast an effective ballot can do so. See Frank v. Walker, 819 F.3d 384, 386–87 

(7th Cir. 2016); Luft v. Evers, 963 F.3d 665, 679 (7th Cir. 2020); 

Democratic National CommiNee v. Bostelmann, No. 20-2835 (7th 

Cir. Oct. 8, 2020). During a pandemic a reasonable person 

entitled to vote by mail transmits the ballot earlier than 

normal or uses another approved method. Indiana allows 

voting from overseas, or by a member of the uniformed services, by fax or email. See Ind. Code §3-11-4-6(h). It also al-
4 No. 20-2911

lows voting in person during the four weeks before Election 

Day. See Ind. Code §3-11-10-26(f). The district court did not 

find that anyone entitled to vote in Indiana would be unable 

to cast an effective ballot by acting ahead of the deadline or, 

if necessary, voting in person on November 3.

There is another problem with the district court’s injunction. The Supreme Court insists that federal judges not 

change electoral rules close to an election. In addition to Republican National CommiNee see, e.g., Andino v. Middleton, No. 

20A55 (U.S. Oct. 5, 2020). We explained in Democratic National CommiNee:

The Justices have deprecated but not forbidden all change close 

to an election. A last-minute event may require a last-minute reaction. But it is not possible to describe COVID-19 as a lastminute event. The World Health Organization declared a pandemic seven months ago, the State of Wisconsin closed many 

businesses and required social distancing last March, and the 

state has conducted two elections (April and August) during the 

pandemic. If the judge had issued an order in May based on 

April’s experience, it could not be called untimely. By waiting 

until September, however, the district court acted too close to the 

election.

...

Voters have had many months since March to register or obtain 

absentee ballots; reading the Constitution to extend deadlines 

near the election is difficult to justify when the voters have had a 

long time to cast ballots while preserving social distancing. The 

pandemic has had consequences (and appropriate governmental 

responses) that change with time, but the fundamental proposition that social distancing is necessary has not changed since 

March. The district court did not find that any person [authorized to vote by mail] who wants to avoid voting in person on 

Election Day would be unable to cast a ballot in Wisconsin by 

planning ahead and taking advantage of the opportunities allowed by state law. The problem that concerned the district 
No. 20-2911 5

judge, rather, was the difficulty that could be encountered by 

voters who do not plan ahead and wait until the last day that 

state law allows for certain steps. Yet, as the Supreme Court observed last April [in Republican National CommiNee], voters who 

wait until the last minute face problems with or without a pandemic.

Slip op. 4–5. That observation is equally apt in this suit. Substitute “Indiana” for “Wisconsin” and the essential point remains.

The state’s motion for a stay is granted. Because recent 

decisions such as Tully and Democratic National CommiNee do 

not leave room for ongoing debate about the issue in this 

case, the injunction issued by the district court is summarily 

reversed.